Indiana.

Sunnyside Coal & Coke Co. v. Reitz, 14 Ind. App. 478, 39 N. E. 541, 43 N. E. 46 (1896). In an action of trespass for mining on land of plaintiff, it was not error to charge the jury to the effect that, if the trespass was committed by mistake or unintentionally, the measure of damages would be the value of the coal taken at its market value in the vein, or before severing it from the soil, together with such other damages to the real estate flowing from such trespass; but if the trespass was willfully and intentionally committed, the measure of damages would be the value of the coal converted at the place where it lay after it had been mined, allowing nothing for severing the same.

Lotz, J.: "While the coal lay in the vein, it was a part of the realty; when it became severed, it became a chattel. The change in its condition did not change its ownership, it still belonged to the owner of the soil. He was entitled to recover its possession, and if this could not be done he was entitled to recover its value as a chattel. If a trespass is willful and intentional, the law will not permit the trespasser to profit by his own wrong. Whatever labor the trespasser voluntarily bestows upon property under such circumstances he must lose. If a trespass is the result of a mistake the damages may be reduced by the value of the labor expended upon it. The one is a positive aggressive wrong, the other a mere inadvertence."

"Whatever the rule may be elsewhere, it is settled in this State, that in an inadvertent or unintentional trespass upon lands, the damages should be measured by the permanent injury done, plus the value of the product severed immediately after the severance, less the cost of labor expended upon them; the burden being on the defendant to show such cost. If the trespass be intentionally committed, the damages should be measured by the permanent injury done plus the value of the products severed at the time of their conversion, or their highest market price at any time be tween the severance and the conversion; and the trespasser is not entitled to any reduction on account of the labor expended on such products.”

A trespass is inadvertent where there was no intention to enter upon the particular land in question; but not when there was an intention to enter upon that land through a mistake as to the legal rights of the trespasser.

Iowa.

Mier v. Phillips Fuel Co., 130 Iowa, 570, 107 N. W. 621 (1906). In an action for damages to land caused by removal of coal, evidence that coal was discovered in land adjoining that of plaintiff, which contained fissures in the surface similar to those in plaintiff's land, is admissible on the question as to whether plaintiff's land contained coal, but evidence as to removal of coal from the adjoining land is irrelevant. Evidence tending to show that defendant had mined coal on land adjoining that of plaintiffs is not competent on the question of whether he had actually taken it fro plaintiff's land where there was no showing that the entries extended

through plaintiff's land to that adjoining. The thickness of a vein of coal under one tract of land is not competent to show its presence under a neighboring tract where the conditions are shown to be variable in that vicinity.

Kentucky.

Sandy River Cannel Coal Co. v. White House Cannel Coal Co., 30 Ky. Law R. 1308, 101 S. W. 319 (1907). In action of trespass for unlawfully working a mine and extracting coal or ore therefrom, if the taking was not a willful trespass, but was the result of an honest mistake as to the true ownership of the mine, the measure of damages is the value of the coal or ore as it was in the mine before it was disturbed. But where the trespass is willful and not the result of an honest mistake, the measure of damages is the value of the coal or ore after being removed from the mine.

Montana.

Maloney v. King, 30 Mont. 158, 76 Pac. 4 (1904). In an action for the recovery of the value of ore mined and carried away from a vein claimed by the plaintiffs, it is incumbent in the first instance upon the plaintiffs to show at least prima facie the amount of ore taken by the defendants, and the plaintiffs cannot recover more than the value of that amount of ore. If the defendants claim that some of this ore was extracted from other ground not belonging to the plaintiffs, this is a matter of defense which it is for the defendants to prove. An instruction is erroneous which tells the jury, in effect, that if the defendants took some ore which belonged to them, and some which belonged to the plaintiffs, and mixed the same, the plaintiffs could recover the value of the whole, unless defendants separated the same by testimony, and proved the amount which rightfully belonged to each. (This is opposed to St. Clair v. Cash Gold Min. & Mill. Co., 9 Colo. App. 235, 47 Pac. 466, above.)

Oregon.

"Where a party is

Hall v. Abraham, 44 Or. 477, 75 Pac. 882 (1904). suing for damages to his mine, and the defendant is a trespasser through inadvertence, he would be compelled to pay only the value of the ore as it was in the mine, and would be entitled to limit his recovery, first, by the value of what is taken; and second, by the cost of mining and extraction, tramming and hoisting to the surface, or hoisting to the pit's mouth, which would be the value of the ore to the party suing if he were engaged in mining himself, and compelled to stand the expense of producing it. This should be confined to the actual cost of digging or quarrying the particular ore from the particular vein in which it is found, exclusive of the work of running levels, drifts, cross-cuts, or explorations, development, or improvement, in discovering or reaching the vein."

Pennsylvania.

Gotshall v. Langdon, 16 Pa. Super. Ct. 158 (1901). Plaintiff by contract of sale acquired equitable title and went into possession in 1885, and acquired legal title in 1891. She could maintain trespass for mining on the land between 1885 and 1891.

In trespass for mining on plaintiff's land, the statute of limitations begins to run from the time of actual discovery or when discovery was reasonably possible.

Ruttledge v. Kress, 17 Pa. Super. Ct. 490 (1901). The act of May 8, 1876, imposing treble damages upon any person who shall mine or dig out any coal, iron, or other minerals, knowing the same to be upon the lands of another, without the consent of the owner, applies to quarrying building stone.

Crawford r. Forest Oil Co., 208 Pa. 5, 57 Atl. 47 (1904). Plaintiffs' ancestor granted to defendant's assignor the exclusive right to operate for oil and gas on a certain farm. Plaintiffs, contending that the grantor had only a life estate, brought ejectment for the farm and recovered. They then brought this action of trespass for the illegal taking of oil by the defendant after the death of the grantor. This was held to be a proper remedy. Before the Procedure Act of 1887, the wrongful taking of oil by one person from the land of another and appropriating the same to his use would, according to the facts, support an action of trover, an action of trespass de bonis asportatis, of trespass quare clausum fregit. or of trespass for mesne profits. Under the Procedure Act of 1887 these are all actions of trespass.

The defendant having taken the oil under a claim of right which turned wholly on a question of law, and having been honestly mistaken, the measure of damages is the value of the oil taken in the pipe lines less the expense of putting it there, which expense would include labor and necessary improvements and repairs to the fixtures and appliances used in doing this, with such additional sum as would compensate the plaintiffs for the detention of the oil, or for the delay in not receiving the damages that they were entitled to receive, this sum not to exceed legal interest on the various sums received by the defendant company for the oil which it wrongfully took and sold.

The court declined to limit the plaintiff's recovery to the usual royalty of one-eighth of the product; and on the other hand declined to charge the defendant for oil drained through wells on adjoining lands or for neglect in not drilling more wells and preventing plaintiffs from drilling other wells on the farm.

Hendler r. Lehigh Val. R. Co., 209 Pa. 263, 58 Atl. 488 (1904). A railroad company cannot be charged with double or treble damages under the act of May 8, 1876, for taking common mixed sand for grading and construction purposes from land over which it has the right of way. Such sand is not a mineral within the terms of the act, which being highly penal is to be construed strictly.

Reilly v. Crown Petroleum Co. 213 Pa. 595, 63 Atl. 253 (1906). Plaintiff having recovered land in ejectment against defendant, the proper remedy to recover the value of oil taken from the land by the latter while in possession is trespass for mesne profits. Assumpsit will not lie.

Utah.

Red Wing Gold Min. Co. v. Clays, 30 Utah, 242, 83 Pac. 219 (1906). In an action to recover for the removal of ore from beneath the surface of plaintiff's mining claim, the defendant alleged that the ore was taken from a vein which apexed on his claim. The burden was upon him to establish the location and apex of his vein.

Bullion Beck & Champion Min. Co. v. Eureka Hill Min. Co., 103 Pac. SS1 (1909). Section 2877, Comp. Laws 1907, prescribing the limitation of actions for trespass, provides "that when the waste or trespass is committed by means of underground workings upon any mining claim, the cause of action shall not be deemed to have accrued until the discovery by the aggrieved party of the acts concerning such waste or trespass." This proviso applied where it was found as a fact that plaintiff had no knowledge, information or notice of any fact or circumstance to lead it to investigate or inquire whether a trespass had been committed, and that plaintiff did not discover the facts constituting the trespass, or any fact to lead it to suspect a trespass, until a date which was within the limitation.

Green v. Turner, 30 C. C. A. 427, 86 Fed. 837 (1898). 7th Circ. Prospective purchasers of mining land "went over the property and at various places saw pits and trenches, some old and some new, at the bottoms of which they were told that extensive beds of ore in place had been found. Those statements they had the right to believe without going into the pits to determine the truth by dipping out the water or digging through the earth with which they were partly filled. The mere presence of the pits and trenches, besides demonstrating the scope of the exploration which seemed and was represented to have been made, was calculated to add creditably to the representations made of what had been discovered, and the inference is not unfair that that was the intended result."

Mather v. Barnes, 146 Fed. 1000 (1906). C. C. W. D. Pa. During the negotiations for the sale of coal lands, the sellers represented that the land was underlaid throughout its entire extent with a particular vein of coking coal, for which the buyer was seeking. The sellers themselves had not been over the land and were not acquainted with it, and they so stated. The buyer sent experts to examine the land, which was wild, mountainous and in places impassable, and could not be explored by them without a guide. They were referred by the sellers to a man employed by them to show the property, stating that he was thoroughly acquainted with it and was their representative on the ground. He made statements to the experts in regard to the coal deposits which he knew to be false. and concealed from them important openings and indications which would have revealed the truth, but which they could not have found without assistance. The sellers were held to be responsible for the fraud of their agent, and the purchase having been induced thereby, the buyer was entitled to have the contract set aside.